The alien rebel and his land

Reader Susan Graben thought she had things figured out about her husband’s 3rd great grandfather, a German immigrant named Louis Graben.

On the 1900 census of Lineville, Clay County, Alabama, Louis Graben was shown as age 70, born June 1829 in Germany, a farmer who’d come to America in 1856. In the column for naturalization what appears to be 1859 is crossed out and the letters NA written in a different hand.1

From that and other records, Susan had thought, it seemed that Louis was naturalized in 1859. He was already living in Alabama by 1860, but the census showed two children — including a one-year-old — born in Georgia,2 so the naturalization might have been there.

He’d claimed federal land in Alabama in 18683 and was recorded in the census there in 1870 and 1880 with his wife and their children.4

The tombstone of that wife — engraved Mary Diana Kimble Graben with a death date of 18975 — has to be in error. Louis remarried in October 1896, to a widow, Mrs. Diana Messer.6

All in all, a nice neat story of immigrant success.

But, it turned out, the facts Susan thought she’d uncovered about Louis weren’t the whole story. He hadn’t been naturalized in 1859 at all — he wasn’t naturalized until 1879.7 And he’d been in the thick of the Civil War — on the losing side.8

Louis had served from 1862 to 1865 in Company H of the 31st Alabama Infantry.9 He’d even received an Alabama state pension as a disabled Confederate veteran, due to a bullet wound to the right elbow, a wound he said he received in June 1864 at the Battle of Resaca, Georgia.10

So, Susan wondered… how did this German-born non-naturalized ex-Confederate get federal land in 1868?

The answer, as usual, is in the law. And in particular in the Homestead Act of 1862 and its amendments.

The most important thing to remember about the Homestead Act is that an individual didn’t have to be a citizen at the time he or she applied for the land. The opening section of the statute provided, in part:

That any person who is the head of a family, or who has arrived at the age of twenty-one years, and is a citizen of the United States, or who shall have filed his declaration of intention to become such, as required by the naturalization laws of the United States, and who has never borne arms against the United States Government or given aid and comfort to its enemies, shall, from and after the first January, eighteen hundred and sixty-three, be entitled to enter one quarter section or a less quantity of unappropriated public lands…11

That underlined language is the key here: Louis had to have filed a declaration of intent to become a citizen, but he didn’t have to have completed the process at the time he entered his claim.

And, the law went on, a homestead claimant had to live on the land for five years and at the end of those five years “if at that time a citizen of the United States, shall be entitled to a patent.”12 And it was no accident that that time period exactly matched the time an immigrant had to be in the United States to be eligible for citizenship.

As explained by Blake Bell, historian of the Homestead National Monument of America:

The Homestead Act was the first of its kind to accommodate immigration and provide the necessary requirements for naturalization. The legislation went beyond simply providing an incentive to come to the United States; it integrated the components for citizenship as well. By requiring a declaration of intention to become a U.S. citizen in order to file for a homestead the first component of the naturalization process was met. Furthermore, the Homestead Act required a 5 year residency period to ensure a potential settler would improve the land. This satisfied the second requirement in the naturalization process. No previous bill in U.S. history went so far to invite immigration and to provide a clearly defined path to citizenship. In many respects, it protected the immigrant homesteader from potential exploitation; succeeding where other immigration law had failed. Land and immigration in the United States have been bound throughout the nation’s history, so it is fitting that the first accommodating immigration law was actually a land law.13

And, here, Louis was a citizen by the time his patent was issued in 1883, so he met all of the citizenship requirements for obtaining land under the Homestead Act. The errant entry on the 1900 census form suggesting an earlier naturalization may be explained by the fact that Louis was the only immigrant in the entire enumeration district, and the census taker may simply have been confused about what he was supposed to write.14

But what about that other part of the statute — the one that says an applicant must be one “who has never borne arms against the United States Government or given aid and comfort to its enemies”?15 How does that get squared with Louis’ Confederate service?

The law was changed in 1866. The quoted language was dropped from the act, and another section added:

That until the first day of January, eighteen hundred and sixty-seven, any person applying for the benefit of this act shall, in addition to the oath, hereinbefore required (that he will bear true allegiance to the government of the United States), also make oath that he has not borne arms against the United States, or given aid and comfort to its enemies.16

Note the time limit — that “I wasn’t a rebel” language only applied until 1 January 1867. And Louis didn’t apply for his homestead land until 1868.

There should be a lot more information about Louis and this land in the actual homestead file at the National Archives in Washington, D.C. His application papers, proof papers, perhaps more leads to where he filed his declaration of intent to become a citizen and more should be part of that file.

And who knows? Maybe someday our Congress will get around to doing its job and the National Archives will even reopen so Susan can get that file…17

A photostat of a Clay County, Alabama, Circuit Court record dated 3 September 1879 and attested by Isaiah F. Cole, Clerk of the Circuit Court, is now in Susan’s possession. It was sent by a relative and its original recordation has not yet been determined. ↩

An Act for the Disposal of the Public Lands for Homestead Actual Settlement in the States of Alabama, Mississippi, Louisiana, Arkansas, and Florida, §2, 14 Stat. 66, 67 (21 June 1866). ↩

No, I’m not angry about the government shutdown. No, not me. Furious, yes. Livid, yes. Ready to condemn them all to the lowest level of the lowest hell, yes. But not angry. Angry doesn’t begin to describe my reaction when I went to check the homestead patent number this morning and found the BLM General Land Office website was offline because of this lunacy in Congress… ↩

Could I clarify something: your phrase “wording was dropped from the act” rather implies the Homestead Act of 1862 was altered. Not so. It’s the Southern Homestead Act passed in 1866, one of several subsequent homestead acts passed after the original Act of 1862, that authorized homestead privileges to former Confederates.
Plus, after Andrew Johnson became president, after Lincoln’s assasination, Johnson, being an unabashed southerner, granted amnesties right and left to former Confederates, so southern landowners were able to reclaim their lands which kept these fertile and desirable former Confederate tracts out of the homesteaders’ reach.
But the Southern Homestead Act of 1866 (repealed about 10 years later) did effectively nullify the “if you bore arms or offered aid and comfort to the enemy (which excluded the wives of former Confederates from homestead, who would have given aid and comfort)” exclusion of southerners to homestead.

Although the 1866 statute was the Southern Homestead Act which did other things, one of the things that law did WAS actually amend the original 1862 statute. That’s expressly what section 2 of the Southern Homestead Act says: “SEC. 2. And be it further enacted, That section second of the above-cited homestead law, entitled ‘An act to secure homesteads to actual settlers on the public domain,’ approved May twentieth, eighteen hundred and sixty-two, be so amended as to read as follows…” So yes, the 1866 statute was one of several subsequent homestead acts, but yes it is also true that the original Homestead Act of 1862 was altered, and it was altered by this statute.

I gasped out loud when I read your footnote that the BLM website is down. Well, now this shutdown feels personal! I enjoyed reading about the “anti-rebel” language being dropped from the act – there are no Confederates in my family tree (yet) so I’d never thought about the implications of that wording.